Excerpt: - - that is precisely what has happened in this case......of criminal procedure 1973, can transfer a case, that was transferred by a court of session to the chief judicial magistrate under section 228(1) cr. p.c. to a court of a magistrate of the first class.2. the facts giving rise to this question are as follows; originally accused 1 to 11 were committed to take trial in sessions case no. 75/77 on the file of the assistant sessions judge, cuddapah, for offences punishable under sections 147, 148, 324 and 307 i.p.c. the learned assistant sessions judge, after preliminary hearing discharged all the accused for offence under section 307 i.p.c. and transferred the case to the chief judicial magistrate, cuddapah, for trying the other offences. that case is now numbered as c. c. no. 1/78. a petition was filed by the accused under section 408 cr......

Judgment:

Gangadhara Rao, J.

1. The question for our consideration in this petition is whether the High Court, by virtue of the powers conferred upon it, under Section 407 of the Code of Criminal Procedure 1973, can transfer a case, that was transferred by a Court of Session to the Chief Judicial Magistrate under Section 228(1) Cr. P.C. to a court of a Magistrate of the First Class.

2. The facts giving rise to this question are as follows; Originally accused 1 to 11 were committed to take trial in Sessions Case No. 75/77 on the file of the Assistant Sessions Judge, Cuddapah, for offences punishable under Sections 147, 148, 324 and 307 I.P.C. The learned Assistant Sessions Judge, after preliminary hearing discharged all the accused for offence under Section 307 I.P.C. and transferred the case to the Chief Judicial Magistrate, Cuddapah, for trying the other offences. That case is now numbered as C. C. No. 1/78. A petition was filed by the accused under Section 408 Cr. P.C. before the Sessions Judge, Cuddapah, to transfer that case from the file of the Chief Judicial Magistrate, Cuddapah, to the file of Judicial First Class Magistrate, Proddatur. The learned Sessions Judge dismissed that petition. Thereafter, this petition was filed by the accused in this Court under Section 407, Cr. P.C. to transfer the case from the file of the Chief Judicial Magistrate, Cuddapah, to the Court of the Judicial Magistrate of First Class, Proddatur.

3. It is submitted by the petitioners that the occurrence had taken place at Proddatur, that all the accused are residents of Proddatur and are doing business there, that all the prosecution witnesses come from Proddatur, that all the defence witnesses to be examined on their behalf are from Proddatur, that the complainant comes from Proddatur, that Cuddapah is far away being at a distance of 40 miles from Proddatur and therefore it tends to the convenience of both the parties if the case is transferred to and disposed of by the Judicial Magistrate of First Class, Proddatur.

4. The learned Public Prosecutor and the learned Counsel for the respondents have submitted that the High Court can transfer the case only to another Chief Judicial Magistrate, under Section 407 Cr. P.C. but it cannot transfer the case to a Judicial Magistrate of First Class. On the other hand, the learned Counsel for the petitioners has submitted that Section 407 is not controlled by Section 228, that the offences can be tried by the Judicial Magistrate of First Class, Proddatur and therefore the case could be validly transferred to him.

5. We will now refer to the relevant provisions of the Code of Criminal Procedure, 1973. Section 12(1) provides that in every district (not being a metropolitan area), the High Court shall appoint a Judicial Magistrate of the First Class to be the Chief Judicial Magistrate. Under Section 14, the Chief Judicial Magistrate can define the local limits of the area within which the Magistrates appointed under Section 11(i.e. Judicial Magistrates of the First Class and of the Second Class) and Section 13(i.e. Special Judicial Magistrates) may exercise their powers. Section 15(1) says that every Chief Judicial Magistrate shall be subordinate to the Sessions Judge; and every other Judicial Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate. Sub-section (2) of that Section provides that the Chief Judicial Magistrate may, from time to time, make rules or give Special orders consistent with the Code, as to the distribution of business among the Judicial Magistrates subordinate to him. Section 29(1) provides that the Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years. Sub-section (2) of that Section says that the Court of a Magistrate of the First Class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or of both. Thus, a Chief Judicial Magistrate is not the same as a Magistrate of the First Class. He is something more. He is superior td the Magistrate of the First Class. In fact, every Judicial Magistrate is subordinate to him. He has also larger powers of sentencing than a Magistrate of the First Class.

6. Section 228 appears in Chap. XVIII dealing with the trial before a Court of Session. Under Section 227, after committal, if upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in that behalf, the Sessions Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. Under Section 228 if, after such consideration and hearing as aforesaid, the Sessions Judge is of opinion that there is ground, for presuming that the accused has committed an offence which is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the-Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report. In view of this section, when the Sessions Judge comes to the conclusion that the case is not exclusively triable by him, he may frame a charge against the accused and transfer that case for trial to the Chief Judicial Magistrate. The Section does not provide that the Sessions Court can transfer that case to any other Court competent to try it. He can only transfer that case for trial to the Chief Judicial Magistrate. That is precisely what has happened in this case. The Assistant Sessions Judge discharged the accused for the offence under Section 307 I.P.C. and transferred the case to the Chief Judicial Magistrate, Cuddapah to try the accused for the remaining offences under Sections 147, 148 and 324 I.P.C.

7. Now, we will refer to Section 407 Cr. P.C. which gives power to the High Court to transfer cases and appeals. Sub-section (1) of that Section is relevant and it reads as follows:

407 (1) Whenever it is made to appear to the High Court....

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or

(b) that some question of law of unusual difficulty is likely to arise, or

(c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, it may order....

(i) that any offence be inquired into or tried by any Court not qualified under Sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;

(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other Criminal Court of equal or superior jurisdiction;

(iii) that any particular case be committed for trial to a court of Session; or

(iv) that any particular case or appeal be transferred to and tried before itself.

In view of this Section, the High Court can transfer a case if it tends to the general convenience of the parties or witnesses or is expedient for the ends of justice.

8. It is not disputed that in the case on hand if the case is tried by the Judicial Magistrate of First Class at Proddatur it will tend to the convenience of the parties and witnesses and it will also be in the interest of justice. But, the High Court can transfer a particular case 'from a criminal court subordinate to its authority to any other such criminal court of equal or superior jurisdiction.' The question is whether the Court of the Judicial Magistrate of the First Class at Proddatur is such a 'Court of equal or superior jurisdiction' to that of the Chief Judicial Magistrate, Cuddapah. Definitely it has no Superior Jurisdiction than that of the Chief Judicial Magistrate.

The Judicial Magistrate of First Class, Proddatur, is not also a Court of equal jurisdiction with that of the Court of the Chief Judicial Magistrate, for the reasons stated by us already. Further, the word 'such' in Section 407(1)(ii) is also significant. It must be such criminal court of equal or superior jurisdiction for the case to be transferred. In these circumstances, we hold that the High Court cannot transfer the case from the file of the Chief Judicial Magistrate, Cuddapah, to the file of the Judicial Magistrate of First Class, Proddatur. The High Court can transfer the case only to another Chief Judicial Magistrate.

9. The learned Counsel for the petitioners submitted that the Judicial Magistrate of First Class, Proddatur, can also try the offences under Sections 147, 148 and 324 I.P.C. It is true. But, that alone is not sufficient for the High Court to transfer the case to that Court. Sub-section (1) of Section 407 does not say that the High Court can transfer the case to another Criminal Court having equal or superior jurisdiction. We, therefore, hold that we cannot accede to the prayer of the petitioners to transfer the case from the Court of the Chief Judicial Magistrate, Cuddapah, to the Court of the Judicial Magistrate of First Class, Proddatur.